Disarming the citizenry vs. the right to keep and bear arms

[Tobias Barrington Wolff]

Sanford Levinson wrote:
>I cannot help believe that Paul and others who are resisting the
>hypothetical are doing so because they don't want to admit that, for
>better and worse, guns *are* different from dogs, cigarettes, or alcohol
>(in the absence of the 21st amendment), in that they may indeed be
>entitled to a greater degree of constitutional protection and/or may even
>have some positive value (in providing means of self-defense, protection
>against tyranny, etc.) that, say, cigarettes most certainly do not have.

Sandy's posting raises a question in my mind.  To the extent that the
purported Second Amendment right of individuals to bear arms enjoys a
federalist or populist justification -- "resisting tyranny" and such -- has
the advent of modern weapons technology not deprived it of all practical
meaning?  In 1787, when cannon were slow and unwieldy, airplanes had not
been invented, and automatic weapons were still the stuff of fantasy, it
may well have made sense to think that reserving to the people an
individual right to possess a musket or rifle would serve some real purpose
in checking excesses or abuses of government power.  But today, this
justification has lost all practical force, unless we mean to allow private
individuals to maintain armories full of tanks, F-14s and nuclear warheads,
which, I take it, no one would suggest.

Thus, it seems to me that, even if we read the Second Amendment as
originally encompassing an individual right to bear arms, that individual
right may now have lost all force (and hence, may be unenforceable) to the
extent that it was grounded on a federalist or populist justification.  The
only substantive element of this individual right that would retain any
force in the Twenty-First Century, it seems to me, is one that is grounded
on some right to "protect" oneself and one's family from private criminal
activity.  I rather doubt that the historical record would support such a
reading of the Second Amendment.  Indeed, I suggest that there are few
decisions that are more appropriate to entrust to a legislature than the
decision of how most effectively to provide for the physical safety of a
community's citizens -- a decision that even a minimalist, "police-power"
philosopher like Robert Nozick has identified as the province of a legislature.

>(As a dog person, I'd be inclined to find a 9th amendment right to keep my
>dog, but I suspect it would lose!)
>
>sandy

Here, however, we are in complete agreement.

-- Tobias B. Wolff
U.C. Davis Law School